Am I Really Gonna Have To Write About This Yet Again … ?

February 28, 2019February 24, 2019 by jrcowles

… but I suppose the answer is “Yes, I will have to write on this subject again, just as I have before.” This time around, I am writing in response to what Patheos rather breathlessly describes as a "constitutional horror": Justice Thomas' assertion that, the "establishment" clause notwithstanding, States still have the right to designate certain religious / denominations as "official". As usual, and as is customary with all matters religious when people are given a breadth of audience that far exceeds their depth of knowledge, the hysteria is altogether overblown and unnecessary, due to an absence of working knowledge about the history of the subject – in this case, the interpretation of the “establishment” clause of the First Amendment. The whole point of what follows is a matter of lapidary clarity: yes, theoretically, Justice Thomas is right that a State has a right to establish a religion or church as the official religion / church of that particular State, but that, as a matter of practical fact -- since we do live in a practical, not a theoretical, world -- this is only a theoretical possibility. Theoretically, it is also possible for all the air molecules in the room where I am writing this to simultaneously migrate to one side of the room, leaving me isolated and suffocating. Possible? Yes, theoretically. Imminent? No. To understand why, consider some history – a subject with which the narrator of the rather overwrought YouTube analysis seems to be pristinely unacquainted.

The phrasing of the “establishment” clause makes it transparently evident, Justice Thomas' apparent tentativeness notwithstanding, that the Federal government is prohibited from establishing an official religion at the Federal level. To wit:

Congress shall make no law respecting an establishment of religion (Boldface added)

The Devil is in the details. Note that the “establishment” clause does not say “Congress shall make no law establishing a state church”. The prohibition is far more wide-ranging than even that. Just how wide-ranging is evident from the word “respecting” in conjunction with the indefinite article “an”. The combination of those two words means that Congress – i.e., at the Federal level – is prohibited, not only from establishing a church, but from any form whatsoever of favoritism toward one church, one body of religious doctrine, one theology, one sacred text, etc., etc. Replacing “an” with “the” would tend to restrict the prohibition to an explicit act whereby one particular religious institution, designated by the definite article "the," and its associated theology would be favored over any other. In combination, the locution “an establishment” has the effect or prohibiting any and all favoritism toward religion whatsoever, with no room left over for a subtle “wink-wink-nod-nod” toward one religious system or ideology over any other. The “establishment” clause – in fact, the entire First Amendment – was written by someone, most likely James Madison, who was possessed of an intimate knowledge of the English language, and who knew how to use that language with an eloquent brevity and terse subtlety seldom equaled and never exceeded. Mr. Madison was the “un-Trump”. Of course, unlike our day, most schools in Mr. Madison's era actually taught the technical details of English grammar, e.g., the critical distinction between definite and indefinite articles (show of hands: how many of you, my readers, could define that difference and describe its importance?).

Prof. Akhil Reed AmarJames Madison

That the “establishment” clause – actually, the entire First Amendment – applies only to the Federal government is evident from the use of the term “Congress;” i.e., the Federal Legislature, not State legislatures. Basically, the First Amendment was written with an acute consciousness of the United States as comprising the several States, each of which represented a separate sovereignty within the context of a Federalist government. The original understanding of the First Amendment was that the First Amendment was originally very much a States’ rights document, and the mention of “Congress” implicitly restricts the power of the Federal government in such a way as to safeguard States’ prerogatives under the 9th and 10th Amendments. In that sense, and to that extent, Justice Thomas is right. If you want to read farther on this subject, you can do no better than to read very carefully America’s Constitution: A Biography and The Bill of Rights: Creation and Reconstruction, both by Prof. Akhil Reed Amar of the Yale Law School. Nothing better or more accessible to non-specialistgs has ever been written on this subject.

The problem with the hysteria engendered by the Patheos article is that people read the “terse text” (Prof. Amar’s term) of the Constitution and stop there. What they ignore, especially well-intended people like David Pakman, whose David Pakman Show on YouTube did as much as anything else to unnecessarily raise the blood pressure of people first encountering this subject, is that the Constitution, like any text, never goes without being interpreted, any more than Moby Dick or Catcher in the Rye, or the Bible. This interpretation may be descried by carefully examining and acquainting oneself with the associated case law. You can imagine any constitutional text as a jet aircraft flying at 35,000 feet and always being accompanied by a textual and discursive “contrail” of interpretation. Any time you see a jet aircraft several miles high in the cold of the upper atmosphere, you will always – no exceptions – find a contrail. Same with the Constitution: all constitutional texts leave behind an interpretive "contrail" of case law. It is critically important to read that constitutional text within the context of its accompanying case law. That is why the study of even the briefest constitutional text can easily be a lifetime profession. And that is without even mentioning historical, linguistic, and cultural factors.

The “establishment” clause is no different. There was a time, in the early 1800s, when Justice Thomas’s interpretation of the “establishment” clause was very much mainstream. States took their prerogatives as sovereign entities quite literally, and it never occurred to their legislatures that the States they served did not have the power to declare certain religions – in practice, certain Christian denominations – as the official religions of that State. In the early 1800s, for example, both Massachusetts and Connecticut declared Congregationalism the official Christian denominations of those States. (The latter decision by the Connecticut legislature, in fact, is what prompted the Baptist association of Connecticut, meeting in the town of Danbury, to write its letter to newly elected President Jefferson asking if Baptists could still worship in Connecticut. Hence Mr. Jefferson’s justly famous “wall of separation” letter in response.) The tradition of religious liberty was too deeply etched into the Republic’s DNA to permit many States to emulate Massachusetts and Connecticut, but the option of declaring an official religion at the State level remained in effect. That is why, in its day, Mr. Madison's Virginia Remonstrance, arguing against preferential treatment of one religion over another in Virginia via government subsidies, was considered, not only cutting-edge, but positively radical.

Then along came the Gitlow v. New York decision of 1925. (Yes … 1925!) in which the Supreme Court ruled that, in matters pertaining to freedom of expression, the “equal protection” clause of the 14th Amendment held States to the same standard as that enjoined upon the Federal government: if the Federal government may not restrict freedom of the press, then neither may the States. (The conviction of the Gitlow appellants was allowed to stand – the Supreme Court agreed that they were indeed disseminating seditious literature – but as a by-product, the “abridgement” clause prohibition on restriction of free expression was articulated.) Granted, this was an “abridgement” clause case, but the reasoning of the Court in Gitlow was immediately applicable to “establishment” clause cases, as well: if the Federal government is prohibited from designating a religion or religious organization or body of religious doctrine as the official such, then neither may the States – as became evident in subsequent “establishment” clause cases. Hence the importance of becoming acquainted with the “contrail” of case law. This process of applying restrictions on Federal power to the States via the “equal protection” clause of the 14th Amendment is technically known as the “doctrine of incorporation,” and constitutional lawyers customarily speak of a constitutional restriction as being “incorporated against the States”.

But perhaps the most important point to note vis a vis the incorporation of the “establishment” clause against the States is two-fold:

The principle of applying “establishment” clause restriction against the States is not a matter written into the “terse text” of the Constitution. Rather, Gitlow amounts to a strategy of constitutional interpretation. There is no text in the Constitution that tells us how to interpret the Constitution. There would be no point. Any text that said “Interpret the Constitution this way, not that way” would itself be subject to interpretation. In “lit-crit” circles, this is known as the “hermeneutic circle”: interpretive rules are themselves always subject to interpretation.

While it is possible – strictly in theory – to repudiate any given principle of constitutional interpretation, as a matter of practical fact, by the time a principle has been in place and in use for a long enough period of time, it does, in a de facto sense, become a part of the US Constitution: as time passes, the principle of stare decesis pulls the principle deeper and deeper into the orbit of the constitutional text. As a counterexample, where a principle of constitutional interpretation has arguably not been in place long enough to command such deference, Roe v. Wade may be such a counterexample. I agree with Justice Ginsburg: not enough time has passed since 1973.

So, yes, in a purely theoretical sense, Justice Thomas is technically right: any number of foundational Supreme Court decisions could be overturned if the Court were to repudiate the interpretive paradigm on which they were founded. In 1803, the Marshall Court, in Marbury v Madison, interpreted the Constitution so as to give to the Supreme Court the power to strike down laws inconsistent with the text of the Constitution. If the Court were someday to repudiate the Marshall Court's principle of interpretation in Marbury, the Court would no longer have the power of judicial review. (Acting AG Whitaker is on record as favoring the repudiation of Marbury.) But how likely is that? About as likely as my previous scenario of all the air molecules migrating to one side of the room where I am typing this. In 1954, the Warren Court cited the “equal protection” clause to justify its declaration, in Brown v. The Board of Education, that racial segregation of schools was unconstitutional. (Brown is also an example of why a working knowledge of history and culture is important in assessing a constitutional text and its vulnerability to revision: by 1954, Brown was actually "low-hanging fruit," since several similar previous decisions had been rendered about segregation of colleges.) To be sure, there are still die-hard segregationists today who argue – quite correctly – that the original intent of that clause applied only to freed slaves. (Remember: originalism is likewise a theory of how to interpret the Constitution. No terse text in the Constitution says "Interpret the Constitution as the Framers originally intended".) But how likely is the Court to repudiate Brown based on such theoretical originalist grounds? See above comments about the migration of air molecules.

There was one unsettling speed-bump recently -- I consider it no more than that -- in which there was certainly a violation of the spirit of the "establishment" clause, though not its letter: the case in Alabama where a Muslim man, Domineque Ray, condemned to death for the murder of a young woman, Tiffany Harville, of Selma, AL, was denied the presence of his imam inside the actual execution chamber as the execution was being carried out. Christian inmates had been afforded the presence of Christian clergy, but not the Muslim man. It is worth noting, however, that (a) the imam was allowed to consult with the murderer in his (the murderer's) prison cell, and was allowed to accompany the convict to the execution chamber, though denied entry therein. The grounds for denying such entry were that the imam lacked the requisite training, as a member of the execution staff, for being present in the actual chamber where the execution was carried out. Also, (b) the four Justices who dissented from the majority opinion, including Justice Sotomayor, cited the "establishment" clause, as incorporated against the States by Gitlow, to justify their objection to the imam's exclusion. The Gitlow decision endures as a means of interpreting the "establishment" clause.

The question begged is "How serious a violation was it?" My answer: it was a violation at the policy level, not at the level of the Constitution. Certainly Alabama law should be revised to provide the requisite training to non-Christian clergy, including Muslim clergy, so that clergy of all faiths can enter the execution chamber. Now, if the Alabama legislature passed a law saying that only Christian clergy would be provided with such training so as to exclude non-Christian clergy from attending in the execution chamber, that would be a true violation of both the letter and the spirit of the "establishment" clause. Ditto prohibiting all non-Christian clergy from being present with their co-religionists to any degree whatsoever, e.g., even in the prison cell while preparing for execution. But as matters stand, the most that can be claimed is that the State of Alabama implemented a "minimalist" interpretation of the "establishment" clause, not that it abrogated that clause, root and branch.

Given the scale of real and justified alarm about the shredding of the Constitution by the current fascist government -- like legalized kidnapping of children from parents and wholesale violations of the 4th, 5th, and 14th Amendments -- there are enough real threats to liberty to be concerned about without manufacturing more.